In Re Clark

51 Cal.2d 838 (1959) In re WILLIAM HOWARD CLARK, on Habeas Corpus.

Crim. No. 6383. Supreme Court of California. In Bank.

Apr. 3, 1959. Robert H. Lund for Petitioner.

Edmund G. Brown, Attorney General, William E. James, Assistant Attorney General, James Don Keller, District Attorney (San Diego), and Claude B. Brown, Deputy District Attorney, for Respondent.

McCOMB, J.

This is a proceeding in habeas corpus filed by Robert H. Lund, an attorney, hereinafter referred to as "petitioner," to determine whether the court exceeded its jurisdiction in modifying the terms of probation of William Howard Clark, hereinafter referred to as "defendant."

Chronology

1. May 16, 1952, defendant pleaded guilty in the Superior Court of San Diego County to the crime of violating section 288a of the Penal Code.

2. June 2, 1952, Judge Glen suspended imposition of sentence for five years (until June 1, 1957) and imposed certain conditions of probation.

3. March 27, 1956, defendant was in custody because he had violated probation for a misdemeanor conviction of another violation of section 288a of the Penal Code. On that date Judge Glen held a hearing relative to modification of probation and ordered that defendant be released from custody and that the terms of the original probation order remain in effect.

4. March 28, 1956, Judge Hewicker, ex parte, at the request of the probation officer, purportedly extended the term of the probation three years to June 1, 1960. The facts upon which he acted were the same as those upon which Judge Glen had acted on March 27, 1956.

5. In 1958 defendant suffered another misdemeanor conviction for violating section 288a of the Penal Code and was taken into custody for violation of probation.

6. November 12, 1958, petitioner sought habeas corpus on the ground that the order of March 28, 1956, purportedly extending the term of probation, was made without the court's having jurisdiction and that defendant's probationary period had therefore expired. Judge Glen denied the application for the writ, and Judge Hewicker revoked defendant's probation and imposed sentence.

Defendant is now in the custody of E. J. Oberhauser, Superintendent of California Institution for Men, at Chino.